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New Braunfels Herald Zeitung (Newspaper) - June 13, 1997, New Braunfels, Texas
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Amending the Constitution no easy feat
By LAURIE ASSEO
Associated Press Writer
WASHINGTON (AP) — Amending the Constitution is not easy — just ask supporters of congressional term limits, a balanced federal budget and the flag-burning ban just passed by the House.
Even so, a newly formed group of legal experts and scholars says politicians are becoming too quick to push constitutional amendments as a way to cure the nation’s ills.
Lawmakers need to show some self-restraint, says Georgetown law professor L. Michael Seidman, a member of Citizens for the Constitution.
“lf one is advocating a constitutional amendment, it is not a sufficient reason that one has the raw political power to put it into place,” Seidman told reporters Thursday.
“People seem to be looking at the Constitution as the drawing board on which to try out their ideas... and to vent frustration,” added Penelope Payne, a Washington lawyer who worked for the Bush administration.
Later Thursday, the House overwhelmingly voted to approve an amendment that would let Congress outlaw burning the American flag.
But there is no guarantee the measure will get the necessary two-thirds vote in the Senate. It has failed to clear Congress before, as have proposals to require a balanced federal budget and limit congressional terms.
Even if the flag amendment gets through the Senate, it still would have to be ratified by three-fourths of the states.
One amendment that got through the process but proved to be a failure was Prohibition, enacted as the 18th Amendment in 1919 and repealed through the 21st Amendment in 1933.
Of about 11,000 amendments proposed over the years, only 27 have been ratified, including the first IO adopted as the Bill of Rights.
But more amendments seem to be getting closer to enactment lately, say members of the group sponsored by the 20th Century Fund, a New York-based nonpartisan research organization.
Citizens for the Constitution boasts many well-known members, including former Attorneys General Benjamin Civiletti, Nicholas Katzenbach and Elliot Richardson — two Democrats and a Republican.
Members say they will not take positions on specific proposed amendments, and they are not arguing that the Constitution should
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never be changed. Instead, they plan to propose standards for considering whether amendments should be enacted.
Questions they will ask: Is an amendment really necessary? Could its aims be accomplished some other way, such as by enacting laws?
Such queries are being made about the proposed victims’ rights amendment, supported by President Clinton and many Republicans. Among other things, it would give crime victims the right to testify at bail hearings and object to plea-bargains.
Such rights already can be provided by federal or state law without a constitutional amendment, says Morton Halperin, a consultant to the 20th Century Fund who served in the Johnson and Nixon administrations.
Allan Morrison of the Public Citizen Litigation Group said another example of offering an amendment when laws would do is the Equal Rights Amendment, which fell short of ratification by the states following years of bitter debate.
Morrison supported the ERA but now believes it is just as well that it did not pass because most of its goals have been accomplished through laws and lawsuits.
“Let’s learn something from that,” he said.
But some changes can be made only by amending the Constitution. The Supreme Court has ruled that congressional term limits cannot be imposed by state or federal law.
At times a constitutional amendment may be needed to overturn a Supreme Court decision, Seidman suggested.
The 14th Amendment overturned the high court’s infamous 1857 Dred Scott decision that denied citizenship to blacks and held Congress had no authority to prohibit slavery in the territories.
But the Conititutiqn should not become the “subject for fads,” says Don Wallace Jr., a Georgetown law professor who was chairman of a group of professors supporting Bob Dole’s presidential campaign.
Wallace said he might favor some of the proposals now in Congress But he added, “I don’t want to make the Constitution something to be toyed with.”
(Laurie Asseo covers the Supreme Court and legal issues for The Associated Press.)
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